Winner v. Graner

Opinion by Mr. Justice McCollum, Main street is a public road in Reserve township, Allegheny county, and a part of the ground on which it is located was opened to the public by A. J. Pentecost in accordance with his plan of lots made and recorded in 1886. He did a little plowing upon it in order to make it passable and to enable purchasers of the lots abutting on it to get from them to the intersecting roads. There was some public travel upon it but there is no evidence that the township formally accepted it or did any work upon it as a public road, or that any one was legally bound to maintain it as such. The inhabitants, however, recognizing it as. a public road, petitioned the court of quarter sessions for a view to widen it and the intersecting road known as Bessie avenue. Viewers were appointed who reported in favor of widening the roads, and their report was duly confirmed, “ the roads when opened to be of the width of thirty-three feet.” Under this order and in conformity therewith the township constructed a good and convenient road over which the public can safely pass. Between Luella street and Bessie avenue, a distance of three hundred and ninety-two feet, it was laid on a slope or hillside, and in the construction of it it was necessary to cut and fill and thus in some degree affect access to the lots above and below it. The petitioners knew this or ought to have known it, because they were familiar with the locality. In 1887 the plaintiff purchased lots 62 and 63 on the Pentecost plan, and in 1889 he built on lot 63 a house in which he has since dwelt. These lots were below and abutted on Main street, and together they gave him a street frontage of forty-eight feet. In June, 1892, he, with others, petitioned for the view which resulted in the improvement we have described, and in May, 1894, he brought this suit to recover damages for an injury done to his property by it. He made no claim for damages before the viewers, and they, regarding the proposed improvement as a positive benefit to and an enhancement of the value of his property awarded him none. The specific matter [47] of which he now complains is that the lower side of the roadbed is so far above the natural surface of the ground on which it rests that it materially interferes with access to and egress from his lots by way of Main street. The roadbed is within the lines of the road as widened, and no part of it extends to the plaintiff’s property line. Its elevation above the natural surface of his lots at that line varies from seventeen inches to two feet six inches, and is greatest at the corner of the alley adjoining lot 68. That this elevation was a natural result or consequence of the cutting and filling necessary to the proper construction of a safe and convenient road along the slope does not appear to admit of reasonable doubt. The elevation of the roadbed as we have described it is no greater now than it was at the close of the work upon it in 1892. So far as the elevation is concerned there was no change wrought in it prejudicial to the plaintiff by the work done after the order to open and widen was returned. A careful consideration of all the evidence in the case, and the principles governing it, has convinced us that the elevation of which the plaintiff complains is chargeable to a proper exercise by the township of the power it possessed under the order to open and widen the road, and that an action for damages caused by the elevation is not maintainable against the township or its agents. For damages caused by the opening and widening of roads laid out in townships the county is liable, but the damages must be ascertained and the liability enforced in accordance with the statutes which give the former and impose the latter: Wagner v. Salzburg Township, 132 Pa. 636. The learned counsel for the plaintiff has called our attention to the act of May 8, 1889, pp. 1, 8, and to the decision of this court in In re Milford, 4 Pa. 303, as affording some support to this action, but neither of them has, in our opinion, any application to it. The plaintiff cannot contest in this action the regularity or validity of the proceedings in the court of quarter sessions for which he petitioned, and if there was a defect in them which would have warranted that court in setting them aside on motion it afforded him no basis for his suit against the township and its agents. Judgment reversed.